Indiana Law Review


Double Jeopardy Protection — Illusion or
Reality?

SusANAH M. Mead*

I. Introduction

Under what circumstances may a criminal defendant justifiably
claim he has "for the same offence [been] twice put in jeopardy of
life or limb"?^ Thei simple language of the double jeopardy clause

belies the difficulty courts have had in applying and scholars have

had in discussing its protection.^ Part of the confusion arises because

the prohibition against double jeopardy applies in different but

Lecturer, Indiana University School of Law — Indianapolis. B.A., Smith College,
1969; J.D., Indiana University School of Law — Indianapolis, 1976.

'U. S. Const, amend. V.

^he origins of the prohibition against double jeopardy may be traced as far back
as Greek and Roman times. Canon law recognized the principles inherent in double
jeopardy protection in its recognition that God does not punish twice for the same
transgression. 1 F. Pollack & F. Maitland, The History of English Law 109 (2d ed.
1898).

Although failure to mention any kind of double jeopardy protection by such early

common law scholars as Glanville and Bracton may suggest that such a prohibition was
not commonly recognized, certainly double jeopardy principles were firmly entrenched

by the time of Coke and Blackstone. Common law pleas such as autrefois acquit
(former acquittal) and autrefois convict (former conviction), which prevented reprosecu-

tion after verdict, had definite double jeopardy overtones. Blackstone stated that "the

plea of autrefoits acquit or a former acquittal, is grounded on this universal maxim of
the common law of England, that no man is to be brought into jeopardy of his life
more than once for the same offence." 4 W. Blackstone, Commentaries *335.

As early as 1641, colonists in Massachusetts declared that "[n]o man shall be
twise sentenced by Civill Justice for one and the same Crime, offence, or Trespasse."

Colonial Laws of Massachusetts 43, quoted in Green v. United States, 355 U.S. 184,
200 (1957) (Frankfurter, J., dissenting). The common law concept of double jeopardy
was given constitutional dimension in America in 1789, when James Madison proposed
an amendment to the Constitution that "[n]o person shall be subject, except in cases of
impeachment, to more than one punishment or one trial for the same offence." 1 An
nals of Cong. 434 (Gales & Seaton eds. 1789), quoted in Green v. United States, 355
U.S. at 201-02 (Frankfurter, J., dissenting). The change in language of Madison's

original proposal of "more than one punishment or one trial . . ." to the ultimate word-

ing of the amendment, "twice in jeopardy . . . ," was prompted by a concern that

Madison's language might be understood to prohibit a criminal's right to appeal. See

355 U.S. at 202 (Frankfurter, J., dissenting).

For an extensive discussion of the history of double jeopardy in England and

America, see Sigler, A History of Double Jeopardy, 7 Am. J. OF Legal Hist. 283
(1963). See also United States v. Wilson, 420 U.S. 332, 339-42 (1975); Green v. United

States, 355 U.S. 184, 199-205 (1957) (Frankfurter, J., dissenting); Ex parte Lange, 85
U.S. (18 Wall.) 163, 168-73 (1874).

863



864 INDIANA LAW REVIEW [Vol. 13:863

related situations. It protects a criminal defendant from a retrial for

the same offense after either conviction or acquittal and from multi-

ple punishment for the same offense at a single trial.^

Additionally, the prohibition against double jeopardy has defini-

tional infirmities. For instance, what constitutes the "same offense"

for purposes of invoking double jeopardy protection? A thief in one
robbery takes several items belonging to different owners; is it one

robbery or more? A man rapes his daughter; is it rape and incest?
In which of these situations would the prohibition against double

jeopardy prevent successive trials? In which would multiple punish-

ments be prohibited if all charges were tried together? The answers

to these questions depend upon the definition of "same offense."

This Article focuses generally on the meaning of "same offense"

and specifically on the meaning of "same offense" in Indiana; the
unusual evolution of offense defining tests in Indiana; the ultimate

adoption of the federal definition by the Indiana Supreme Court; and
the application of that definition in recent Indiana cases.

Although the United States Supreme Court made the double
jeopardy clause of the fifth amendment mandatory on the states in
1969,* Indiana courts have had considerable difficulty in determining

the extent of that protection.^ As a result, the federal constitutional
test for determining "same offense" has not been uniformly applied.
The Indiana experience exemplifies the difficulties courts have had
in grappling with the perplexing problems raised by the double

jeopardy clause.

II. Tests for Defining "Same Offense"

A. In General

All would agree that criminal conduct which violates one statute
one time should result in one trial and one punishment. However,
with the current proliferation of offense categories by modern legis-
latures,^ one act or one course of criminal conduct may violate a

'United States v. Wilson, 420 U.S. 332, 343 (1975); North Carolina v. Pearce, 395
U.S. 711, 717 (1969); Green v. United States, 355 U.S. 184, 187-88 (1957). See generally
United States v. Benz, 282 U.S. 304, 307-09 (1931); United States v. Ball, 163 U.S. 662,
669 (1896); In re Nielsen, 131 U.S. 176, 182-84 (1889); Ex parte Lange, 85 U.S. (18 Wall.)
163, 168-69 (1873).

'Benton v. Maryland, 395 U.S. 784 (1969), overruling Palko v. Connecticut, 302
U.S. 319 (1937).

^he Indiana Supreme Court recently recognized that federal double jeopardy
standards should apply in Indiana. Elmore v. State, 382 N.E.2d 893 (Ind. 1978).

"Ashe V. Swenson, 397 U.S. 436, 445 n.lO (1970). See generally Comment, Twice
in Jeopardy, 75 Yale L.J. 262, 279-80 (1965) [hereinafter cited as Twice in Jeopardy];
Comment, Statutory Implementation of Double Jeopardy Clauses: New Life for a
Moribund Constitutional Guarantee, 65 Yale L.J. 339, 342 (1956).



1980] DOUBLE JEOPARDY 865

number of criminal statutes. Therefore, the question is whether
several offenses may be tried and punished separately, or must be
tried and punished as one offense.

B. ''Same Offense'' and Legislative Intent

Although an act may be reprehensible per se, it is not criminal
until it has been defined as such by a legislative body. Is it the act

itself we try and punish, or is it the violation of a legislatively de-
fined offense? Courts and commentators agree that the double
jeopardy clause does not limit the legislature's capacity to define

crimes and prescribe punishments.^ However, double jeopardy does
prevent multiple trials or punishments if the legislature intended

the offenses prosecuted or punished to be ''the same." Thus, if the

same conduct violates several legislatively defined offense cate-
gories, punishment for each offense is not violative of double jeopardy.

The difficulty lies in determining legislative intent. Too often,
the passage of a new statute which overlaps an old statute is
taken as a sufficient indication that the legislature intended punish-

ment under both.^ Criminal codes, however, are often haphazardly
changed or amended.^ For example, the legislature may enact a stat-
ute unaware that one with overlapping provisions exists. Similarly,

obsolete statutes may not be repealed or harmonized with new stat-
utes. Ambiguity also exists in the courts' interpretation of legisla-

tive intent. Some courts have found that the simultaneous creation
of offense categories by the legislature indicates that both offenses

should be punished;^" whereas other courts have determined that the

creation of statutes at different times shows that the legislature in-

tended all of the offenses to be separately triable and punishable."

C Tests Defining ''Same Offense''

Although federal double jeopardy was not obligatory on the

states until 1969, most states had provided a similar protection in

^The United States Supreme Court recently reaffirmed this position in Brown v.
Ohio in which it stated, "Because it was designed originally to embody the protection of the
common law pleas of former jeopardy . . . the Fifth Amendment double jeopardy guarantee
serves principally as a restraint on courts and prosecutors. The legislature remains free
under the Double Jeopardy Clause to define crimes and fix punishments " 432 U.S. 161,

165 (1977). See also Bell v. United States, 349 U.S. 81 (1955); Twice in Jeopardy, supra note

6, at 302-04.

^lannelli v. United States, 420 U.S. 770. 785 n.l7 (1975).

'Kirchheimer, The Act, The Offense and Double Jeopardy, 58 Yale L.J. 513,
515-16 (1949).

•"Dunkle v. State, 241 Ind. 548, 551-52, 173 N.E.2d 657, 659 (1961).

"Gore V. United States, 357 U.S. 386, 391 (1958).



866 INDIANA LAW REVIEW [Vol. 13:863

their state constitutions.^^ However, because states could freely

determine the scope of double jeopardy protection and the definition

of "same offense," a variety of approaches emerged. Tests for defin-

ing "same offense" fall into two general categories — the evidentiary
or "same evidence" test and the behavioral or "same transaction"

test.''

1. "Same Evidence" Tes^. — "Same evidence" tests focus on the
evidence necessary to convict for particular legislatively defined of-

fenses.'^ If the violations of two such offenses may be established by
proof of the same evidence, they are the same offense. If, on the
other hand, one offense requires proof of a fact which the other does

not, they are not the "same offense" for purposes of double jeopardy.

Thus, the emphasis of such a test is not on the nature of the acts

but on the statutory definitions of the offenses.

The "same evidence" test rarely prevents retrial or multiple
punishments in cases in which one act or course of conduct violates

several statutes. If a prosecutor exercises his discretion to charge a

criminal defendant with every possible offense arising out of one

course of conduct, and, after conviction, the judge, unfettered by

double jeopardy prohibitions, sentences on every conviction, a crimi-

nal defendant may find himself tried several times or punished
several times for a single unlawful act. To the extent that this result
reflects legislative intent, double jeopardy principles are not vio-

lated. However, the plethora of offense categories and potential for
overlap which have developed create a likelihood that the spirit of

the double jeopardy clause, as originally contemplated by the

drafters of the fifth amendment, is not realized if the "same evi-
dence" test is used.

Still, the "same evidence" test, although flawed, is easy to apply.
An examination of the statutes involved will reveal whether the

''Sigler, supra note 2, at 307-08; see also Benton v. Maryland, 395 U.S. 784, 795
(1969); Brock v. North Carolina, 344 U.S. 424, 435 n.6 (1953) (Vinson, C.J., dissenting).

^^Twice in Jeopardy, supra note 6, at 269-70.

"Three varieties of "same evidence" tests have been used. Courts espousing the
required evidence test look to the elements of the criminal statutes under considera-
tion. If the statutory definitions are the same in that they require proof of the same
facts, the offenses are the same; if they require proof of different facts, they are not
the same. See, e.g., Blockburger v. United States, 284 U.S. 299 (1932). Courts adopting
the alleged evidence test examine the allegations in the indictments to see if the of-
fenses are the same. See, e.g.. People v. Brannon, 70 Cal. App. 225, 233 P. 88 (1924).
Courts using the actual evidence test look to the evidence actually introduced at trial.
See, e.g., Estep v. State, 11 Okla. Crim. 103, 143 P. 64 (1914).

Of the three evidentiary tests, the required evidence test has the largest follow-
ing. Although the test has limitations, its one great advantage is that it can be applied
prior to trial. If one of the purposes of the double jeopardy protection is to prevent
retrial for the same offense, it is absurd to employ a test like the actual evidence test
which cannot be applied until after the second trial is nearly over.



1980] DOUBLE JEOPARDY 867

same or different proof is required. Statutes which require proof of
the same facts meet the test for same offense; statutes which re-
quire proof of different facts do not.

2. "Same Transaction" Test — The behavioral approach to dou-
ble jeopardy includes such tests as the "same act" test, the "same

transaction" test, and the "same intent" test.^^ These tests focus not

on the definitions of statutory offenses, but on the actual conduct of

the actor.

Although these behavioral tests are obviously advantageous to

the criminal defendant, they are often difficult and impractical to

use. A primary drawback is semantic. ^^ "Act," "transaction," and
"ultimate intent" are imprecise terms. How broadly can "act" be
defined? How attenuated can a "transaction" be? How far removed
from the criminal's conduct can his "ultimate goal" be?

The behavioral tests may also thwart legislative intent. Although
a single act may constitute rape and incest, the statutes defining
these crimes address discrete types of offensive behavior. Can it be
said that the legislature did not intend to punish both? Similarly, in

a single criminal transaction, diverse criminal statutes may be
violated. Can the legislature have intended that such a transaction
be only one offense?

D, Inadequacy of Tests

It is clear that neither of the tests devised to determine the

meaning of "same offense" is adequate. The evidentiary tests may
leave a criminal defendant with too little double jeopardy protec-

tion; whereas the behavioral tests may provide him with too much
protection. Furthermore, although the inconvenience and potential

harassment which attend multiple trials might justify the require-

ment that all crimes arising out of the same transaction be tried
together, the legislature, by addressing different harms in defining
various crimes may have intended to punish each separately. Balanc-
ing the needs of the defendant against those of the state has prompted
much discussion by courts and commentators. Myriad solutions have
been suggested, ^^ but none has satisfactorily solved the dilemma.

^^Twice in Jeopardy, supra note 6, at 270. Under the "same act" test, offenses are

the same if only one criminal act is involved, regardless of how may legislatively
defined statutes are violated. See, e.g.. Sexton v. Commonwealth, 193 Ky. 495, 236

S.W. 956 (1922). Courts applying the "same transaction" test find only one offense if all

the statutory violations occur as a part of one criminal transaction. See, e.g., Crumley

V. City of Atlanta, 68 Ga. App. 69, 22 S.E.2d 181 (1942). Courts applying the "same in-

tent" test determine whether all offenses which lead to the criminal's ultimate intent

or goal are the same. See, e.g.. Smith v. State, 159 Tenn. 674, 21 S.W.2d 400 (1929).

^Tor a discussion of the language problems inherent in the behavioral tests see

Twice in Jeopardy, supra note 6, at 276-77; Kirchheimer, supra note 9, at 524-25.

"See Kirchheimer, supra note 9, at 534-42.



868 INDIANA LAW REVIEW [Vol. 13:863

E. "Same Offense'' and the United States Supreme Court

The United States Supreme Court early adopted the "same evi-
dence" test^^ for use in federal double jeopardy cases. It expressed

the test most definitively in Blockburger v. United States.^^ The

defendant in Blockburger was charged with several violations of the
Harrison Narcotics Act,^° each involving a sale of narcotics to the

same purchaser on successive days. He was convicted on three

'*The "same evidence" test was developed originally to overcome a problem pro-

duced by common law pleading requirements. At common law any variance between
the allegations and pleadings and the proof actually produced at trial resulted in a

technical acquittal. Goldstein, The State and the Accused: Balance of Advantage in

Criminal Procedure, 69 Yale L.J. 1149, 1173-74 & nn.76 & 77 (1960).
The defendant could then claim that the first acquittal bars a second trial. The

actual pleading used was autrefois acquit. See note 2 supra. To prevent such injustice,

the court in Rex v. Vandercomb, 2 Leach 708, 168 Eng. Rep. 455 (1796), held that

because the evidence necessary to convict the defendant in the second correct indict-

ment could not have convicted him on the first incorrect indictment, the offenses were

not the same and the defendant could be retried. Id. at 717, 168 Eng. Rep. at 459-60.

Although the test originated as a means of allowing trial after technical acquit-

tals, it has evolved into the test used for determining the "same offense" for all

aspects of double jeopardy. In Morey v. Commonwealth, 108 Mass. (12 Browne) 433
(1871), the bedrock case in America on the "same evidence" test, the court found that a

former conviction for lascivious cohabitation would not bar a later trial and conviction

for adultery, although both charges were based on the same conduct. The court in
Morey was not faced with a quirk in procedure, but with a question of substantive
criminal law — can the same criminal act be the basis for more than one conviction and
punishment? The Morey court answered unequivocally "yes."

A conviction or acquittal upon one indictment is no bar to a subsequent con-
viction and sentence upon another, unless the evidence required to support a
conviction upon one of them would have been sufficient to warrant a convic-
tion upon the other. The test is not whether the defendant has not already
been tried for the same act but whether he has been put in jeopardy for the
same offense. A single act may be an offense against two statutes; and if
each statute requires proof of an additional fact which the other does not, an
acquittal or conviction under either statute does not exempt the defendant
from prosecution and punishment under the other.

Id. at 434.

This "same evidence" approach to double jeopardy has been approved with
regularity by the United States Supreme Court. In Gavieres v. United States, 220 U.S.
338 (1911), the Court specifically adopted the "same evidence" test as articulated in
Morey, id. at 343, noting that although the defendant's convictions of insulting a public
official and exhibiting drunk and disorderly conduct were based on the same factual oc-
currence, the offenses charged were different because "evidence sufficient for convic-
tion under the first charge would not have convicted under the second indictment." Id.
at 343-44.

•^84 U.S. 299 (1932).

""Harrison Narcotic Act, Pub. L. No. 223, ch. 1, § 1, 38 Stat. 785 (1914), as amended by
Revenue Act, Pub. L. No. 254, ch. 18, § 1006, 40 Stat. 1057, 1130 (1919) (codified at I.R.C. §
696).



1980] DOUBLE JEOPARDY 869

counts at one trial and sentenced to a five year prison term on each,
the terms to run consecutively.^^

The defendant, claiming that the various charges based on a
single sale of narcotics constituted one offense for which only one
punishment could be imposed, specifically challenged the "same evi-
dence" approach to double jeopardy protection.^^ The Court unequiv-
ocally reiterated its position that conviction on each count did not

violate double jeopardy even though the convictions arose from the
same criminal act of selling narcotics. It stated:

Each of the offenses created requires proof of a different ele-
ment. The applicable rule is that where the same act or
transaction constitutes a violation of two distinct statutory
provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision
requires proof of a fact which the other does not.^^

Except for purposes of clarification, the Court has never deviated
from this statement of the test.^* Even a significant overlap in the

=^'284 U.S. at 301.

"^Hd. at 304. In addition to settling this question, the Court also addressed the

defendant's contention that the sales made to the same customer on two consecutive
days constituted a single continuing offense. It held that Congress intended to penalize

any sale made in violation of the Act, so each sale constituted a distinct offense. Id. at

303.

'Hd. at 304.

^*Although the restrictive Blockburger definition of "same offense" has remained

firmly entrenched, the decision in Bell v. United States, 349 U.S. 81 (1955), indicated

that the Court might take a more liberal view toward determining whether the

legislature intended to punish more than once. In Bell, the defendant was convicted of

simultaneously transporting two women across state lines in violation of the Mann
Act, 18 U.S.C. § 2421 (1970). The issue presented to the Court was whether two

separate offenses were committed. Recognizing that Congress has the power to deter-

mine the appropriate punishment for any criminal offense subject only to constitutional

limitations on cruel and unusual punishment, U.S. Const, amend. VIII, the Court

established a rule of construction which should be applied in situations such as this one

in which congressional intent is unclear. It held that "when Congress leaves to the

judiciary the task of imputing to Congress an undeclared will, the ambiguity should be

resolved in favor of lenity." 349 U.S. at 83.

Although this liberal attitude toward construing legislative intent in favor of the

criminal defendant had potential for mitigating the harshness of the "same evidence"

test, its effectiveness has been limited. The Court in Gore v. United States, 357 U.S.
386 (1958), retreated from the rule of lenity. Based on two sales of narcotics, Gore was

convicted on a six count indictment charging violations of three different sections of

federal narcotics statutes and was sentenced to three consecutive terms for each sale.

In response to Gore's argument that all three sections were aimed at the same act and

that his convictions therefore violated the double jeopardy clause, the Court answered

by specifically adhering to its decision in Blockburger. Id. at 388. It distinguished Bell

on the basis that in Bell only one statutorily defined offense was involved. "It is one

thing for a single transaction to include several units relating to proscribed conduct



870 INDIANA LAW REVIEW [Vol. 13:863

proof offered to establish the crimes will not make them the same
offense for double jeopardy purposes, because the focus of the test

is not on the proof offered, but on the statutory elements of each

offense.

The Court is apparently satisfied that this test adequately deter-
mines legislative intent. In applying the "same evidence" test to
uphold convictions on both conspiracy to violate a statute and viola-

tion of the statute itself, the Court in lannelli v. United States^^

found that the Blockburger test

serves a . . . function of identifying congressional intent to

impose separate sanctions for multiple offenses arising in

the course of a single act or transaction. In determining

whether separate punishment might be imposed, Blockburger

requires that courts examine the offenses to ascertain

"whether each provision requires proof of a fact which the

other does not."^®

Thus, legislative intent supporting separate trials or separate

punishment can be inferred from the mere fact that a legislative
body has enacted more than one statute with different elements pro-
hibiting the same behavior.

The Court's adoption of a strict "same evidence" test raises a
question whether federal double jeopardy standards ever prevent
multiple trials or multiple punishments where multiple statutes are
involved. After the Court's decision in Brown v. Ohio,^'^ the answer
has to be yes, but not often.^* In Brown, the defendant was convicted

under a single provision of a statute. It is a wholly different thing to evolve a rule of

lenity for three violations of three separate offenses created by Congress at three dif-

ferent times . . . ." Id. at 391.

2^20 U.S. 770 (1975).

^^Id. at 785 n.l7 (quoting Blockburger v. United States, 284 U.S. at 304).

"432 U.S. 161 (1977).

^^Although the Court's position on lesser included offenses and double jeopardy

appeared clear after Brown, the Court inadvertently set a trap for the unwary in Jef-

fers V. United States, 432 U.S. 137 (1977). In Jeffers, the defendant opposed consolida-

tion of the two charges against him, conspiring to distribute heroin and cocaine, and

conducting a criminal drug enterprise with five or more people. Although the Court

admitted, "[i]f the two charges had been tried in one proceeding, it appears that peti-

tioner would have been entitled to a lesser-included-offense instruction," id. at 153, it

nonetheless denied the defendant double jeopardy protection against his second trial,

finding that if a defendant requests separate trials and "fails to raise the issue that

one offense might be a lesser included offense of the other, another exception to the

Brown rule emerges." Id. at 152. However anomalous, although double jeopardy did
not prevent defendant's second trial for what was "the same offense," double jeopardy

did prevent an additional punishment after conviction of "the same offense." Id. at 157.

A contingent of the United States Supreme Court led by Justice Brennan has
consistently advocated mandatory joinder in one trial, of all charges arising out of "a

single criminal act, occurrence, episode, or transaction" — in essence, a "same transac-



1980] DOUBLE JEOPARDY 871

t\on" test. Ashe v. Swenson, 397 U.S. 436, 453-54 (1970) (Brennan, J., concnrring).

Troubled by the "tendency of modern criminal legislation to divide the phases of a
criminal transaction into numerous separate crimes," id. at 452 (Brennan, J., concurr-

ing), and the unfettered discretion of prosecutors to initiate separate criminal prosecu-

tions, Justice Brennan argued that the "same evidence" test is inadequate in determin-

ing whether separate trials should be prohibited. Thus, he has suggested that a "same

transaction" test be used to define "same offense" for the multiple trial situation.

However, he has advocated that the "same evidence" test should be used to determine

which offenses are the same for purposes of punishment. He justifies using different
tests in the double jeopardy area because the "same evidence" test is not constitu-

tionally required and because "the consolidation in one lawsuit of all issues arising out

of a single transaction or occurrence best promotes justice, economy, and

convenience." Id. at 454 (Brennan, J., concurring).

At the time Justice Brennan posed his solution to the multiple trial problem, the
Supreme Court's position on what constituted the same offense in the multiple trial
situation was not altogether clear. Blockburger, the case in which the Court firmly

adopted the "same evidence" test, was a one trial situation. However, after the Court's
decision in Brown, a two trial situation, the possibility that Justice Brennan's man-

datory joinder idea will ever have constitutional dimension is remote.

This does not, however, foreclose the possiblity of mandatory joinder being re-

quired by statute. Numerous recommendations have been made in this regard both at
the federal and state levels. See, e.g.. National Commission on Reform of Federal
Criminal Laws, Final Report: A Proposed New Criminal Code §§ 703, 705(b) (1971);
ABA Project on Minimum Standards for Criminal Justice: Standards Relating to
Joinder and Severance § 1.3 (1968); Model Penal Code §§ 1.07(2), 1.09(l)(b) (Proposed
Official Draft 1962). Furthermore, a number of states require mandatory joinder either
by statute, see, e.g.. III. Rev. Stat. ch. 38, §§ 3.3, 3.4(b)(1) (1972); 18 Pa. Cons. Stat. §
110 (1973), or through interpretation of state constitutional double jeopardy. See, e.g.,

People V. White, 390 Mich. 245, 212 N.W.2d 222 (1973); State v. Gregory, 66 N.J. 510,
333 A.2d 257 (1975).

Although hope that mandatory joinder might rise to a constitutional level has

been effectively foreclosed, the criminal defendant may still, under appropriate cir-
cumstances, assert collateral estoppel as a means of preventing multiple trials. In Ashe

V. Swenson, 397 U.S. 436 (1970), the defendant was accused of being one of three or

four men who robbed several poker players. He was tried for robbing one of the
players, but was acquitted after the prosecution could not establish his identity. At a

subsequent trial for the robbery of one of the other players, the defendant was con-

victed. Reversing the second conviction, the United States Supreme Court based its

decision not on the application of the "same evidence" test but on the principle of

federal collateral estoppel. "[W]hen an issue of ultimate fact has once been determined

by a valid and final judgment, that issue cannot again be litigated between the same

parties in any future lawsuit." Id. at 443. The Court found this rule to be embodied in

the fifth amendment guarantee against double jeopardy, thus giving the doctrine of

collateral estoppel constitutional dimension. Id. at 445.

The additional protection against multiple trials provided by collateral estoppel is

limited at best. First, the doctrine applies only if the first trial ended in acquittal. It

provides no protection against additional trials after conviction or against multiple

punishment at a single trial. Id. at 446. Additionally, if the jury returns a general ver-

dict, it is difficult to determine what issues of ultimate fact were decided in the defen-

dant's favor. Finally, the decision in Ashe does not prevent retrial by a different

sovereign, because a different party is involved, and collateral estoppel only estops

relitigation between the same parties. Although it may have been the hope of the ma-
jority in Ashe that its decision would significantly expand double jeopardy protection

against multiple trials, in practice, the protection is largely ephemeral.



872 INDIANA LAW REVIEW [Vol. 13:863

of joyriding in one trial and of car theft in a later trial; both offenses

were based upon the same factual incident. Applying the Block-

burger "same evidence" test, the Court concluded that joyriding and

car theft were the same offense, because joyriding was a lesser in-

cluded offense of car theft.

[I]t is clearly not the case that "each [statute] requires proof

of a fact which the other does not." ... As is invariably true

of a greater and lesser included offense, the lesser offense —

joyriding — requires no proof beyond that which is required
for conviction of the greater — auto theft. The greater of-
fense is therefore by definition the "same" for purposes of

double jeopardy as any lesser offense included in it.^^

Thus, traditional greater and lesser included offenses fulfill the

"same evidence" requirement.

III. Double Jeopardy and the "Same
Offense" in Indiana

A. Introduction

Because the United States Supreme Court did not extend

Another significant protection against multiple trials for offenses arising out of

the "same transaction" is the Petite policy. In Petite v. State, 361 U.S. 529 (1960), the

case in which the Court first recognized the policy, the defendant had been indicted in

two different federal courts for offenses arising out of the same transaction. The
United States Supreme Court granted certiorari to consider the double jeopardy

aspects of the case, but the Department of Justice filed a motion requesting the Court

to direct the second district court to dismiss the indictment. The basis for the request
was "that several offenses arising out of a single transaction should be alleged and

tried together and should not be made the basis of multiple prosecutions, a policy dic-
tated by considerations both of fairness to defendants and of efficient and orderly law

enforcement." Id. at 530. The Petite policy also operates to prevent a subsequent
federal trial of an offense arising out of the same transaction which had been the basis

of a trial in state court. Thompson v. United States, 100 S.Ct. 512 (1980).
A strict adherence to this policy gives the criminal defendant protection against

multiple prosecutions in federal courts and against a prosecution in federal court after

a prosecution based on the same transaction in a state court. It does not, however, pro-

tect a defendant against multiple trials in state court or against a subsequent state

court action after a federal trial based on the same transaction. However, many states
have precluded state prosecutions after federal prosecutions for the "same offense."

See, e.g., Model Penal Code § 1.11 (Tent. Draft No. 5, 1956).
''432 U.S. at 168 (quoting 284 U.S. at 304). The Court further clarified its position

on lesser included offenses in Harris v. Oklahoma, 433 U.S. 682 (1977). The defendant
had been convicted at one trial of felony murder, and at another trial of robbery with

firearms, the underlying felony of the felony murder. The Court found that if "convic-

tion of a greater crime, murder, cannot be had without conviction of the lesser crime,

robbery with firearms, the Double Jeopardy Clause bars prosecution for the lesser

crime after conviction of the greater one." Id. at 682.

i



1980] DOUBLE JEOPARDY 873

federal double jeopardy protection to the states until 1969,^° the

states were free to develop their own standards.^' Thus, double
jeopardy protection in Indiana has evolved independent of, rather

than as a result of, federal constitutional protection.^^

The major divergence between the development of Indiana and
federal double jeopardy principles is that Indiana courts have his-

torically focused on double jeopardy as a prohibition against multi-

ple trials rather than as a prohibition against multiple punishment.

In fact, the early courts used the term former jeopardy rather than

double jeopardy to refer to the problem.^^ The Indiana Supreme
Court's attitude was specifically articulated in Kokenes v. State,^^ in
which the court stated, 'The contention that the conviction on the

first count bars a conviction on the second is untenable, since the

convictions were simultaneous, and there was no former jeopardy."^^
The Indiana emphasis on double jeopardy as a multiple trial

problem was perpetuated in the 1976 Indiana Penal Code which pro-
vides in pertinent part that future prosecutions are barred if a

former prosecution was based on the same facts and for commission
of the same offense.^^ This section constitutes the first attempt in In-

^"Benton v. Maryland, 395 U.S. 784 (1969). The Court had specifically refused to

extend double jeopardy protection to the states at least twice. In the celebrated case,

Palko V. Connecticut, 302 U.S. 319 (1937), the Court specifically found that federal dou-

ble jeopardy protection was not applicable to the states unless the states' actions sub-

jected a defendant to truly shocking treatment. The Court reiterated its stance in

Brock V. North Carolina, 344 U.S. 424, 427 (1953). However, in the wake of such cases

as Gideon v. Wainwright, 372 U.S. 335 (1963) (extending right to counsel to state

criminal defendants), Malloy v. Hogan, 378 U.S. 1 (1964) (extending right against self

incrimination to state criminal defendants), and Duncan v. Louisiana, 391 U.S. 145

(1968) (extending the right to trial by jury to state criminal defendants), the Court

found in Benton that federal double jeopardy standards should apply to protect state

criminal defendants.

''See note 12 supra and accompanying text.

'^he Indiana Constitution provides that, "[n]o person shall be put in jeopardy

twice for the same offense." Ind. Const, art. 1, § 14.

^See, e.g., Ford v. State, 229 Ind. 516, 98 N.E.2d 655 (1951); Kokenes v. State, 213

Ind. 476, 13 N.E.2d 524 (1938); Arrol v. State, 207 Ind. 321, 192 N.E. 440 (1934). But see

Pivak v. State, 202 Ind. 417, 175 N.E. 278 (1931), where the defendant was charged by

two affidavits which were tried together. The Court, however, spoke in terms of "two

prosecutions." Id. at 421, 175 N.E. at 280.

^213 Ind. 476, 13 N.E.2d 524 (1938).

^/rf. at 480, 13 N.E.2d at 526.

'"Ind. Code § 35-41-4-3 (Supp. 1979).

(a) A prosecution is barred if there was a former prosecution of the
defendant based on the same facts and for commission of the same offense

and if:

(1) the former prosecution resulted in an acquittal or a conviction of the

defendant (A conviction of an included offense constitutes an acquittal of



874 INDIANA LAW REVIEW [Vol. 13:863

diana to codify double jeopardy rules, yet no mention is made of the
double punishment aspects of double jeopardy. Of course, after Ben-

ton V. Maryland,^'' the scope of double jeopardy protection in Indiana

must be commensurate with the federal protection. Therefore, dou-

ble jeopardy certainly prohibits multiple punishment for the same

offense in Indiana. However, the failure of the statute to identify

multiple punishment as a double jeopardy problem may reinforce
the focus on it as a prohibition only against multiple trials.

B. Development of Offense Defining Tests in Indiana

An examination of early Indiana case law in the area of double
jeopardy reveals that Indiana courts used a variety of approaches to

double jeopardy before ultimately settling for the traditional "same

evidence" test. Although the state constitution forbade double

jeopardy,^* early courts frequently dealt with double jeopardy prob-

lems without ever identifying them as such.^^ Furthermore, the
simultaneous evolution of disparate tests for determining when an
additional trial would be prohibited led to considerable confusion.

1. Gravamen of Offense Test — The first clearly articulated
test in Indiana relating to double jeopardy was the "gravamen of of-
fense" test. This test had the potential for striking a balance be-

tween the act and offense, because it focused on the conduct of the

defendant as it related to the social interests sought to be protected,

rather than on the identity of elements of the statutes. If the grava-

men, or principle act, necessary to violate each statute was the
same, then the offenses were the same for double jeopardy pur-
poses."*"

the greater offense, even if the conviction is subsequently set aside.); or

(2) the former prosecution was terminated after the jury was impaneled
and sworn or, in a trial by the court without a jury, after the first
witness was sworn, unless (i) the defendant consented to the termination
or waived, by motion to dismiss or otherwise, his right to object to the

termination, (ii) it was physically impossible to proceed with the trial in
conformity with law, (iii) there was a legal defect in the proceedings that
would make any judgment entered upon a verdict reversible as a matter
of law, (iv) prejudicial conduct, in or outside the courtroom, made it im-
possible to proceed with the trial without injustice to either the defen-

dant or the state, (v) the jury was unable to agree on a verdict, or (vi)
false statements of a juror on voir dire prevented a fair trial,

(b) If the prosecuting authority brought about any of the circumstances
in subdivisions (a)(2)(i) through (a)(2)(vi) of this section, with intent to cause

termination of the trial, another prosecution is barred.
'^395 U.S. 784 (1969).

'^IND. Const, art. 1, § 14.

""See, e.g., Hamilton v. State, 36 Ind. 280 (1871).

"See, e.g., Wininger v. State, 13 Ind. 540 (1859).



1980] DOUBLE JEOPARDY 875

In Wininger v. State,*^ an early Indiana case articulating the

gravamen of offense test, the defendant, who had earlier been fined
for assault and battery, appealed a conviction for participating in a

riot. Because both charges arose from the same operative facts, the
defendant claimed he had already been once in jeopardy. The court
agreed, finding, "the true rule, in prosecutions for offenses of this

character, is, that where the gravamen of the riot consists in the
commission of an assault and battery, then, a conviction for that

assault . . . would be a bar to a prosecution for a riot . . . ."*^ The
court distinguished this kind of situation from one in which the

assault and battery might have been incidental to the riot." The
focus of this test was obviously not on the specific elements of proof
required to establish each offense but on the more general social
evil sought to be prevented.''^

Although it has much in common with the traditional "same
evidence" test, the "gravamen of offense" test differs to the extent

that if the main thrust or gravamen, or principal act of each offense

is the same, double jeopardy will preclude retrial even if the of-

fenses are not in all respects identical. It is not altogether clear

from the cases at what point in the litigative process the "gravamen

of offense" test was applied to see whether a second trial would be

prohibited.'*^ Although it would have been possible, prior to trial to

"13 Ind. 540 (1859).

"/d. at 541.

*'Id.

**The most definitive statement of the rationale behind the "gravamen of offense"

test appears in State v. Gapen, 17 Ind. App. 524, 45 N.E. 678 (1896). The defendant
was tried and convicted in separate trials of selling less than a quart of alcohol without

a license and of selling alcohol to a minor. Both charges arose out of the same factual

situation. The court noted that one act might offend a number of statutes and might be
tried separately without subjecting the defendant to double jeopardy. The court
engaged in the sophisticated discussion of the rationale behind the "gravamen of of-

fense" test. Citing Wininger, it defined gravamen to mean "principal act." Id. at 526,
45 N.E. at 678. Recognizing that no act (here the sale of intoxicating liquor) is an

unlawful act until made so "by force of statute," id. at 527, 45 N.E. at 679, the court
found the sale to be an illegal act both because it was made without a license as re-
quired by one statute and because it was made to a minor as forbidden by another
statute. Id. In its explanation of why the gravamina of the offenses were different, the
court laid the groundwork for what could have been a just and workable test for deter-

mining when double jeopardy principles should apply to prevent retrial.
Whilst it is true that there is an identity in the charges and in the evidence

up to a certain point, yet up to that point the sale is an innocent transaction.

It is only when the criminal character of the transaction is sought to be made
that the two offenses diverge, in the charge, and in the evidence necessary

to a conviction. The purposes of the two statutes are entirely dissimiliar. The
one is to raise revenue and protect those who have obtained license. The
other is to guard the young against intemperance. The appellee is in error in



876 INDIANA LAW REVIEW [Vol. 13:863

evaluate the defendant's act in relation to the offenses violated, it is

also possible that the determination was not made until the end of
the second trial. If it was the latter, the "gravamen of offense" test

would have been objectionable for the same reasons the "same
evidence" test is objectionable/® Even if the determination were
made prior to the second trial, there is another objection to the
"gravamen of offense" test. Who decides what the gravamen or prin-
ciple act of an offense is? Who decides what the purposes of the
statutes involved are and whether they are similar or dissimilar?
These questions were never fully answered, because the "gravamen
of offense" test met an early end."^

2. ''Identity of Offense'' Test. — Although one line of early cases
followed the "gravamen of offense" test, another line followed the

assuming that the sale alone constitutes the criminal offense. In so far as the

charges and the evidence are identical, the transaction is entirely innocent.

The appellee might have been convicted, or acquitted of the charge of selling

to a minor, and the fact he had no license be not even alluded to. The fact

that he had no license was not an element in that offense. So on the other

hand he might have been convicted or acquitted of the charge of selling

without a license, and the age of the purchaser not have even been referred

to, for his age is not an element of that offense.

Id. at 528, 45 N.E. at 679.

*^It is difficult to determine at which point the "gravamen of offense" test was ap-

plied because appeals are generally taken from a denial of double jeopardy protection

which means both trials have already taken place.

*^See text accompanying note 14 supra.

*'Woodworth v. State, 185 Ind. 582, 114 N.E. 86 (1916). The defendant in Wood-

worth was charged with violations relating to the sale of intoxicating liquor. One provi-

sion under which Woodworth was convicted provided that an unlicensed person may

not sell or barter intoxicating liquors and permit them to be drunk on the premises

where sold. Another provision of the same section made it a misdemeanor for a person

to keep, run, or operate a place where intoxicating liquors were sold in violation of

law, or to have such liquor in his possession for such purpose.

The defendant claimed that evidence of a sale made in violation of the first provi-
sion could not be used as evidence at a trial for the later offense, because both offenses

arose from the same sale and he had already been punished for it once. Although the

court spoke in terms of gravamina of offenses, finding the gravamina of these offenses

to be different, it significantly changed the test as it had been applied in earlier cases.

See, e.g.. State v. Gapen, 17 Ind. App. 524, 45 N.E. 678 (1896). The court found in this
case "[ejvidence sufficient to convict a person of the first offense would not necessarily

be sufficient to sustain a conviction of the second, and the converse of this proposition

is equally true." 185 Ind. at 586, 114 N.E. at 87. Thus, the gravamen of offense test had

metamorphosed into something much like the required evidence test. The Woodworth
court essentially foreclosed a "same act" or "same transaction" test when it specifically
disapproved language in earlier cases which had suggested that if the same conduct
constituted two or more offenses, the state must elect which one to prosecute. The
court specifically disapproved the language in Fritz v. State, 40 Ind. 18 (1872), but dic-

ta in other early cases had suggested the same idea. See, e.g., Fleming v. State, 174
Ind. 264, 91 N.E. 1085 (1910); Hamilton v. State, 36 Ind. 280 (1871).



1980] DOUBLE JEOPARDY 811

"identity of offense" test. In State v. Elder,^^ decided in 1879, the

defendant claimed that an indictment charging him with procuring a

miscarriage violated his double jeopardy protection/^ because at an

earlier trial he had been acquitted of the murder of the unborn
child. After pointing out that an offense may not be subdivided into
parts and charged separately^" and that necessarily lesser included

offenses could not be charged with the greater,^^ the court

nonetheless found that if the same facts constitute two or more of-
fenses and the facts necessary to convict on a second prosecution

would not necessarily have convicted on the first, a second prosecu-

tion would not be barred even though the offenses resulted from the

same act.^^ Applying these rules, the court found that procuring a
miscarriage was not the same offense as the murder of the unborn
child.^^ The court apparently found no inconsistency in the fact that
procuring the miscarriage was the means by which the murder was
committed. It was sufficient that

[t]he lesser offense [was] not involved in the greater; the of-

fenses [were] not committed against the same person and
[bore] no resemblance to each other, either in fact or intent;

the facts necessary to support a conviction on the present in-

dictment would not necessarily have convicted, nor would

they have tended to convict, upon the former indictment.'54

In upholding separate trials and convictions on unlawfully ap-

propriating estray property and the larceny of that same property,
the court in Smith v. State^^ specifically focused on the elements of

the statutes in question to determine whether the defendant had

been subjected to double jeopardy .^^ It found "[t]he true test to

determine the sufficiency or insufficiency of a plea of formal acquit-

tal as a bar to the pending prosecution, is this: Would the same
evidence be necessary to secure a conviction in the pending, as in a

former, prosecution?""

In Foran v. State,^^ in which the defendant was retried for cer-
tain sales of intoxicating liquor, the court reiterated this test and

*«65 Ind. 282 (1879).

*'The defendant raised the defense of former acquittal by special answer. Id. at
283.

""Id. at 285.

''Id.

''Id.

''Id. at 286.

''Id.

"8^ Ind. 553 (1882).

"See id. at 554-56.

"Id. at 557.

^195 Ind. 55, 144 N.E. 529 (1924).



878 INDIANA LAW REVIEW [Vol. 13:863

labelled it the "identity of offense" test.^^ The court also found that

to establish "identity of offense," the "second charge must be for the

same identical act and crime as that charged by the first affidavit or
indictment upon which defendant had been placed in jeopardy."^"

With little variation, the "identity of offense" test has remained

the offense defining test for double jeopardy purposes in Indiana/^

Although this test is conceptually identical to the "same evidence"

test adopted by the United States Supreme Court in Blockburger,
the Indiana courts have generally not relied on or even mentioned

United States Supreme Court cases in reaching their conclusions on
double jeopardy issues.®^

3. Rejection of the ''Same Transaction" Test. — Early Indiana
cases indicated that the courts might edge toward a behavioral ap-

proach in defining "same offense" for purposes of double jeopardy

protection. The emphasis on the act in the "gravamen of offense"
test and the suggestion, in dicta in some early cases, that, if the
same conduct offended two statutes, the state must elect which to
prosecute, indicated a trend in that direction.^^ However, the courts

in Woodworth,^^ Elder,^^ Smith,^^ and Foran,^'^ specifically rejected

the "same transaction" test.

C. ''Merger of Offense'' Doctrine

Even with a well established offense defining test as a beacon,
the Indiana Supreme Court made a brief but fascinating detour from
its usual double jeopardy analysis. Under the appellation "merger of
offenses," the court adopted what was in essence a behavioral or

^7d. at 60, 144 N.E. at 530.

''Id.

"See, e.g., Ford v. State, 229 Ind. 516, 521, 98 N.E.2d 655, 657 (1951); Durke v.
State. 204 Ind. 370, 377-78, 183 N.E. 97, 100 (1932); Buckley v. State, 322 N.E.2d 113,
116 n.6 (Ind. Ct. App. 1975).

^''A notable exception to this is the decision in Dunkle v. State, 241 Ind. 548, 173
N.E.2d 657 (1961), in which the court relied on Blockburger for the proposition that the
appropriate test for determining identity of offenses is the "difference or the lack of

difference in the evidence necessary to establish one particular crime as compared
with that required to establish the other crime." Id. at 551, 173 N.E.2d at 658. Oddly,

the court mentioned no Indiana cases in its double jeopardy analysis. The court in
Buckley v. State cited Blockburger and noted the similarities between the federal dou-
ble jeopardy analysis and the Indiana approach. 322 N.E.2d 113, 116 n.6 (Ind. Ct. App.
1975).

"Tlemming v. State, 174 Ind. 264, 91 N.E. 1085 (1910); Hamilton v. State, 36 Ind.
280 (1871).

•"185 Ind. 582, 586-87, 114 N.E. 86, 87-88 (1916). See note 47 supra.
"'^65 Ind. at 286-87.

'"'85 Ind. 553 (1882).

"^95 Ind. at 60, 144 N.E. at 530.



1980] DOUBLE JEOPARDY 879

"same transaction" test for determining the extent of punishment

for several offenses in a single trial setting. Thus, if a series of

criminal statutes were violated by a single transaction, the convic-

tions of crimes with less severe punishments merged with the crime
carrying the greatest penalty/^ Explanations as to why this aber-
rant doctrine evolved in the midst of the "identity of offense" test in

Indiana must remain largely conjectural, because the court never ex-

plained its rationale with any degree of specificity.*^

A reasonable explanation is that the doctrine is rooted in the
court's failure to recognize multiple punishment as a double jeopardy

problem. For instance, in Thompson v. State i'^ in which the defen-
dant in one trial was convicted of both possessing and selling
dangerous drugs, the court stated, "Since Appellant has been sub-

jected to only one judicial proceeding for the offenses charged, his

claim of double jeopardy is inappropriate."^^ Notwithstanding the

court's misconception that double jeopardy principles apply only to

multiple trials, it apparently sensed an inherent injustice in the fact

that the defendant received "in effect, double punishment for a

single offense arising from but one set of operative circumstances."^^

The court, using language reminiscent of double jeopardy
vocabulary, held that "before the court may enter judgment and im-
pose sentence upon multiple counts, the facts giving rise to the

various offenses must be independently supportable, separate and
distinct."^^ Although it is obvious that the court was talking about a

.

double jeopardy situation, the focus of its language was not on the
identity of the offenses the defendant was charged with, but on the
identity of his acts.

"'See, e.g., Jones v. State, 267 Ind. 205, 369 N.E.2d 418 (1977) (theft conviction

merged into second degree burglary); Sansom v. State, 267 Ind. 33, 366 N.E.2d 1171

(1977) (theft and automobile banditry merged into burglary); Candler v. State, 266 Ind.

440, 363 N.E.2d 1233 (1977) (robbery merged into felony murder).

®*A doctrine of merger existed at early common law. If the same conduct con-
stituted both a misdemeanor and a felony, the misdemeanor was said to merge into the
felony. See 2 W. RussELL, A Treatise on Crimes and Misdemeanors 1026 (9th am. ed.
1877). A few early Indiana cases employed a merger rule by which misdemeanors were
merged into felonies if one act constituted both a misdemeanor and a felony. State v.

Hattabough. 66 Ind. 223 (1879); Wright v. State, 5 Ind. 527 (1854). As early as 1871,
however, the court in Hamilton v. State, 36 Ind. 280 (1871), expressed doubt as to

whether the doctrine of merger existed in the state of Indiana. It pointed out that
even if the doctrine did exist, "[i]t has never been held that offenses of equal grade can

merge the one in the other." Id. at 286. In Hamilton the offenses were both felonies.
Thus, it seems unlikely that the modern merger doctrine espoused by the Indiana
Supreme, Court had its origins in this early merger doctrine.

^"259 Ind. 587, 290 N.E.2d 724 (1972), cert, denied, 412 U.S. 943 (1973).

''Id. at 591-92, 290 N.E.2d at 726.

'^Id. at 592, 290 N.E.2d at 727.

'Hd.



880 INDIANA LA W REVIEW [Vol. 13:863

Another case which fanned the fires of the merger doctrine was

Coleman v. State J^ In Coleman, the defendant was convicted of armed

robbery, automobile banditry, assault and battery with intent to kill,

kidnapping and kidnapping while armed with a deadly weapon. All
charges arose from a single course of conduct. In a discussion aimed

at the validity of Coleman's conviction of armed kidnapping as well
as kidnapping, the court quoted the well-known test from State v.

Elder^^ for determining when offenses are the same. Finding that
the kidnapping was a lesser included offense of armed kidnapping,
the court vacated the conviction for kidnapping.^^ Had the court
stopped at this point, the case would have been consistent with

double jeopardy cases even though the court did not frame the

issues in double jeopardy terms. However, the court, for reasons
which are not apparent in the opinion, found that if armed robbery
were the felony supporting the charge of automobile banditry, the
sentence for automobile banditry would also have to be vacated

because "it rest[ed] upon the same criminal act supporting the
greater offense of armed robbery."^^ The rationale behind this con-
clusion is not readily discernible. Automobile banditry is obviously

not a lesser included offense of armed robbery or any other felony.^®
It was, however, an offense which by definition could not be commit-

ted except in conjunction with another felony.^^ Possibly the court

was silently critical of multiple sentencing for offenses which de-
pend for their existence on the commission of other offenses.
However, militating against this interpretation is the court's sugges-
tion that if automobile banditry did not rest on the same conduct as
the robbery, the sentence might stand.®"

One of the most interesting cases to be handed down during the
merger era was Candler v. State.^^ The defendant, who had been
charged with robbery and felony murder in the commission of a rob-
bery, had objected to the trial court's instruction which implied that

felony murder has no lesser included offenses.®^ On appeal, the court

^*264 Ind. 64, 339 N.E.2d 51 (1975).
'^5 Ind. at 285.

'«264 Ind. at 70-71, 339 N.E.2d at 56.

''Id. at 72, 339 N.E.2d at 57.

^*Although automobile banditry carried a less severe penalty than robbery, at

one time, automobile banditry carried a ieng-thy sentence. See Ind. Code § 35-12-2-1 (1976)
(repealed 1977). Thus, the felony supporting the automobile banditry could at one time

have been a lesser included offense of automobile banditry. See, e.g., Hatfield v. State,

241 Ind. 225, 230, 171 N.E.2d 259, 261 (1961).

^'At the time the new Indiana Penal Code was enacted automobile banditry was
repealed and not reenacted.

'"264 Ind. at 72, 339 N.E.2d at 57.
«'266 Ind. 440, 363 N.E.2d 1233 (1977).

«7d. at 457, 363 N.E.2d at 1243.



1980] DOUBLE JEOPARDY 881

stated that the defendant's requested instruction, that robbery was
a lesser included offense of felony murder, was not required;*^
nonetheless, the court concluded that the defendant could not be

sentenced on both the murder and the robbery, citing the rule in
Thompson.^^

Although the language in these merger cases indicates a new ap-
proach in managing closely related offenses, except for the court's
treatment of automobile banditry, the decisions in each case can be

justified on a traditional lesser included offense analysis.®^

However, in Sansom v. State,^^ the court took a giant step in the
direction of a "same transaction" test. Sansom was convicted and
sentenced on automobile banditry, theft and second degree burglary.

The court of appeals found that automobile banditry merged with
second degree burglary because "the same criminal act support[ed]
both offenses,"®^ but allowed the convictions of theft and second

degree burglary to stand. The supreme court granted transfer and
vacated the judgment and sentence on the theft count, because it

too "merged into the burglary, as the offense for which the greatest
penalty [was] provided."*® The court offered no explanation for this
conclusion.®^

In Jones v. State,^^ decided soon after Sansom, the court further
muddied the waters. It merged convictions of second degree
burglary and theft based on the same incident because "[i]n this
situation, theft was a lesser included offense of the burglary ."^^ No
traditional approach to lesser included offenses would find that theft

is a lesser included offense of burglary. Although the court no doubt

meant that theft merged into burglary because it occurred during
the same transaction and carried the lesser penalty, the use of the
term "lesser included offense" added to the existing confusion.

«'/d. After Harris v. Oklahoma, 433 U.S. 682 (1977), robbery would be considered

a lesser included offense of felony murder.

^*See text accompanying notes 70-73 supra.

*^Possession of dangerous drugs is a lesser included offense of a sale of dangerous

drugs. Thompson v. State, 259 Ind. 587, 290 N.E.2d 724 (1972). Robbery is a lesser in-
cluded offense of felony murder. Candler v. State, 266 Ind. 440, 457, 363 N.E.2d 1233,

1243 (1977).

«*267 Ind. 33, 366 N.E.2d 1171 (1977).

"Sansom v. State, 354 N.E.2d 336, 338 (Ind. Ct. App. 1976), rev'd, 267 Ind. 33, 366

N.E.2d 1171 (1977).
**267 Ind. at 35-36, 366 N.E.2d at 1172. Without mentioning any cases by name,

the court apparently overruled earlier Indiana cases which had found burglary does

not bar larceny, Tungate v. State, 238 Ind. 48, 147 N.E.2d 232 (1958), and larceny does

not bar burglary. Cambron v. State, 191 Ind. 431, 133 N.E. 498 (1922).
«»267 Ind. at 36, 366 N.E.2d at 1172.

»°267 Ind. 205, 369 N.E.2d 418 (1977).

''Id. at 211, 369 N.E.2d at 421.



882 INDIANA LAW REVIEW [Vol. 13:863

Cases such as Sansom and Jones indicated that the Indiana
Supreme Court had adopted a ''same transaction" test for certain
criminal situations, but just what those situations were was never
entirely clear.^^

In Neal v. State,^^ decided during the merger era, the defendant

was convicted of both robbery and kidnapping. In concluding that it
was not error to sentence on both convictions, the court focused on
the act — offense problem. Quoting an earlier case, which held that
crimes are seldom accomplished by single acts,^* the court specifically

noted:

While a series of acts must generally transpire to effect the
commission of a given crime, the same series of acts may
also effect two or more crimes. Although a crime usually in-
volves a series of acts, each act in any given series is not

necessarily an essential ingredient of the crime. It is only

when two offenses require proof of the same fact or act that
double jeopardy considerations bar a prosecution for both.^^

It is not surprising that this language when compared with language
in cases such as Coleman, Sansom, and Thompson, caused con-
siderable consternation among those responsible for administering
justice.

D. ''Same Offense'' and Elmore v. State

The Indiana Supreme Court's decision in Elmore v. State,^^ the
most extensive discussion of double jeopardy in Indiana since the
court first articulated the rules pertaining to double jeopardy in

'^he offenses the court "merged" with regularity were automobile banditry into

the pendent felony and theft into burglary. That the court would not merge just

anything into burglary was exemplified by cases such as Mitchell v. State, 266 Ind.

656, 366 N.E.2d 183 (1977) (entering to commit a felony, rape and robbery did not

merge); Jenkins v. State, 267 Ind. 543, 372 N.E.2d 166 (1978) (burglary, rape and rob-

bery did not merge); and Moore v. State, 267 Ind. 270, 369 N.E.2d 628 (1977) (carrying

a firearm in violation of the Firearms Act, armed robbery, and first degree burglary

did not merge). Thus, the rationale behind the doctrine could not have been that

burglary or entering to commit a felony merged with the felony which it was intended

to accomplish. One explanation could be that the felony merged if it carried a lesser

sentence than burglary but not if it carried a greater sentence. Another could be that

no merger occurred if one of the crimes contained a threat of violence or personal in-

jury.

»»266 Ind. 665, 366 N.E.2d 650 (1977).

'*Id. at 667, 366 N.E.2d at 651 (quoting Walker v. State, 261 Ind. 519, 523, 307

N.E.2d 62, 65 (1974)).

''Id. at 667, 366 N.E.2d at 651.
»«382 N.E.2d 893 (Ind. 1978).



1980] DOUBLE JEOPARDY 883

State V. Elder,^'' was an effort to alleviate the confusion caused by

the merger doctrine. The defendants in Elmore were convicted of

conspiracy to commit theft, and theft. The Indiana Court of Appeals,

relying on Thompson and other merger cases, found that the convic-

tions merged, because they arose out of the same transaction and

were not, therefore, "independently supportable, separate and

distinct."^^ Judge Buchanan, dissenting, noted how the court's recent
merger cases diverged from established double jeopardy principles,

and urged doctrinal consistency.^^

The Indiana Supreme Court granted the state's petition for
transfer and reversed the court of appeals on the issue of merger of

offenses. To dispel the confusion caused by the apparent inconsisten-
cies in double jeopardy analysis, the court clarified the Indiana posi-

tion in regard to the "same offense" aspect of double jeopardy. Find-

ing that the United States Supreme Court's application of the
double jeopardy clause of the fifth amendment to the states war-
ranted bringing Indiana standards in line with federal standards,

^°°

the court solidly approved the Blockburger "same evidence" test

and adopted it as the proper test for defining "same offense."^"^ The

court resoundingly disapproved the "same transaction" aspect of the

merger doctrine^"^ and reaffirmed earlier Indiana authority to the ef-

*^65 Ind. 282 (1879). The decision in Elmore has been the object of considerable at-
tention. Raphael, Criminal Law and Procedure, Survey of Recent Developments in In-
diana Law, 13 Ind. L. Rev. 187-89 (1980); Conour, Criminal Justice Notes, 23 Res
Gestae 32 (1979).

^«375 N.E.2d 660, 667 (Ind. Ct. App. 1978), vacated, 382 N.E.2d 893 (Ind. 1978).

The Court of Appeals' decision to merge theft with conspiracy to commit theft was
unusual in light of the well established view that conspiracy is distinct from the com-

pleted offense and that double jeopardy is not violated by sentences for both. lannelli

V. United States, 420 U.S. 770 (1975); Pinkerton v. United States, 328 U.S. 640 (1946).

Even though at one time conspiracy was a misdemeanor and merger might have
occurred based on the common law merger doctrine, the trend has always been away
from merger of conspiracy and the completed crime. See Annot., 37 A.L.R. 778 (1925);

Annot., 75 A.L.R. 1411 (1931).

In addition, the Indiana Supreme Court handed down its decision in Diggs v.
State, 266 Ind. 547, 364 N.E.2d 1176 (1977), during the "merger" era. In that case, the

court did not merge delivery of a controlled substance and conspiracy to deliver a con-
trolled substance. The dissent reasoned that the merger principle required that the
two convictions merge. Id. at 553, 364 N.E.2d at 1179 (DeBruler, J., dissenting).

Finally, although Elmore was decided under prior law, the new Indiana Penal
Code had been adopted. Although the Indiana Criminal Law Study Commission con-
sidered barring conviction for conspiracy and the completed crime, Indiana Criminal
Law Study Commission Indiana Penal Code: Proposed Final Draft 71-72 (1974), as
finally adopted, the new Code permits convictions of both conspiracy and the com-
pleted crime. Ind. Code § 35-41-5-3 (Supp. 1979).

"375 N.E.2d at 668 (Buchanan, C.J., dissenting in part).
^•"382 N.E.2d at 896.

'"'Id. at 895.

'''Id. at 897.



884 INDIANA LAW REVIEW [Vol. 13:863

feet that a single act can constitute more than one offense/*^^

Furthermore, it specifically recognized that consitutional double

jeopardy principles operate to prevent multiple trials and multiple

sentences for the same offense. ^"^

Although the decision in Elmore largely settled the double

jeopardy law in Indiana, it raised the puzzling problem of "when

cumulative punishments may be properly imposed for multiple of-
fenses arising from the same criminal act or course of conduct."^°^ In
partial explanation, the court said, "we have consistently refused to
allow cumulative punishments to be imposed where defendants are

convicted of both a greater and lesser included offense such as armed
robbery and inflicting injury in the commission of a robbery ."^°^ If by

these statements the court intended to suggest that double jeopardy

prohibitions prevent multiple punishment only if sentences run con-

secutively, it has vastly changed the law in Indiana. Although the

potential for cumulative sentencing certainly exists under the new
Penal Code,^^^ until recently, multiple convictions rarely resulted in

cumulative sentencing. ^°® The courts have generally considered each
sentence to be an additional punishment regardless of whether the

sentences ran concurrently or consecutively. ^°^ However, despite the
court's interpretation of the constitutional mandate, the statute in

Indiana preventing sentencing on both a lesser and greater offense

will obviate the danger of multiple sentencing for the same
offense.

^^°

Although the cumulative punishment question is unanswered in

Elmore, the approach in determining the "same offense" has been
settled. Under the federal standard as adopted by Elmore, offenses
are not the same if each statute which has been violated by a
defendant's action requires "proof of an additional fact which the

other does not.""^ To comply with this standard, courts need to
focus only on the statutory definitions of crimes with which the

'''Id.

''*Id. at 894.

'"^/d. (emphasis added).

"^/d. at 895 (emphasis added).

'°lND. Code § 35-50-1-2 (Supp. 1979).

'"^One interesting aspect of the Court's emphasis on cumulative punishment is

that there is nothing to indicate that the defendants in Elmore were sentenced
cumulatively. Under the law in effect at the time Elmore and his codefendants were
sentenced, cumulative sentencing was only authorized if permitted by statute. See,
e.g., IND. Code § 35-8-7-1 and § 35-8-7.5-1 (now codified at Ind. Code § 35-50-1-2 (Supp.
1979)).

'"•See, e.g., Benton v. Maryland, 395 U.S. 784 (1969); Thompson v. State, 259 Ind.
587, 592, 290 N.E.2d 724, 727 (1972), cert, denied, 412 U.S. 943 (1973).

""Ind. Code § 35-4.1-4-6 (Supp. 1979).
"'382 N.E.2d at 895 (quoting Blockburger v. United States, 284 U.S. at 304).



1980] DOUBLE JEOPARDY 885

defendant is charged. Nothing in Elmore indicates that an examina-

tion of the evidence actually presented is an appropriate matter for

inquiry in determining double jeopardy protection.

E. ''Same Offense'' after Elmore

Although the "same evidence" approach to double jeopardy

taken in Elmore appears to be easily applied, Indiana courts ad-
dressing double jeopardy problems after Elmore have not always
employed the test correctly. In fact, some courts have gone to
unusual lengths to avoid the harsh results of a literal application of

Elmore .^^"^ An apt example is McFarland v. State, ^^^ one of the first
double jeopardy cases to be decided after Elmore. In McFarland, the

defendant was convicted of attempted armed robbery and assault
and battery. After an extensive discussion of Elmore's adoption of

the "same evidence" test and double jeopardy protection in
general, ^^* the court of appeals found attempted armed robbery and
assault and battery to be the "same offense" for double jeopardy
purposes."^ However, an examination of the elements of attempted
armed robbery and assault and battery reveals that each requires
proof of facts which the other does not.^^^ A strict application of the
"same evidence" test would have justified conviction on both
charges, because, according to the Elmore definition, the offenses
are not the same. However, the court found that "[bjecause the
evidence that was necessary to prove this statutory element of at-
tempted armed robbery also proved the statutory elements of
assault and battery, the latter must be deemed a lesser included
offense of attempted armed robbery and the two offenses must be

"Tor examples of the harsh application of Elmore, see Pollard v. State, 388
N.E.2d 496, 506 (Ind. 1979) (kidnapping and premeditated murder do not merge); Pat-

terson V. State, 386 N.E.2d 936, 942 (Ind. 1979) (conspiracy and completed crime do not

merge); Adams v. State, 386 N.E.2d 657, 661 (Ind. 1979) (rape, sodomy, and robbery do
not merge); Inman v. State, 393 N.E.2d 767, 771 (Ind. 1979) (criminal confinement and

resisting a law officer do not merge); Mitchell v. State, 382 N.E.2d 932, 934 (Ind. 1978)

(robbery and felony murder merge because robbery is a lesser included offense); Love

V. State, 383 N.E.2d 382, 386-87 (Ind. Ct. App. 1978) (voluntary manslaughter and aim-

ing a firearm do not merge); Fields v. State, 382 N.E.2d 972, 977 (Ind. Ct. App. 1978)

(assault and battery and disorderly conduct do not merge).
"^384 N.E.2d 1104 (Ind. Ct. App. 1979).

'''Id. at 1111-13.

'''Id. at 1113.

"^Although it is unclear from the opinion under what statute the jury convicted

McFarland for assault and battery, that crime was defined as "[wjhoever in a rude, in-

solent or angry manner, unlawfully touches another, is guilty of an assualt and bat-

tery. . . ." Ind. Code § 35-1-54-4 (1976) (repealed 1977). Therefore, to prove armed rob-

bery, it is unnecessary to establish a touching; to prove assault and battery, it is un-

necessary to establish a taking.



886 INDIANA LAW REVIEW [Vol. 13:863

regarded as the same under Blockhurgery^^'' Nevertheless, only
traditional lesser included offenses which do not require proof of

any fact different from that required to prove the greater can meet

the definition of "same offense," because only they will have the

necessary identity of statutory elements. No offense can be ''deemed
a lesser included offense" so as to satisfy the *'same evidence" test

of another if it "required proof of an additional fact which the other

does not.""®

Although it recognized that legislative intent is the key to deter-

mining whether double jeopardy principles have been violated, the

court in McFarland specifically found no "legislative intent to im-

pose more than one criminal sanction in this situation'^^^ even
though the offenses by statutory definition were not "the same."^^°

Distinguishing the situation in Elmore, the court found that "unlike

the crime of conspiracy to commit theft and the substantive offense

of theft which pose distinct dangers, the two offenses here address

the same harm stemming from one act."^^^ This approach ignores the
idea inherent in the "same evidence" test that if a legislative body

created variously defined offenses, it intended each to be punished

separately, regardless of whether one act violates more than one
offense. ^^^ Under this analysis, the legislature expressed its intent
when it promulgated the two statutes involved. The court should
not look to the factual circumstances of a particular case to deter-

mine legislative intent. However, the court in McFarland did just

"^384 N.E.2d at 1113 (emphasis added). The court's statement, that the offenses
are the same because the assault and battery "must be deemed a lesser included of-
fense of attempted armed robbery," indicates a misunderstanding as to the manner in
which the "same evidence" test applies to lesser included offenses. The United States
Supreme Court's holding in Brown v. Ohio that joyriding and car theft satisfied the
"same evidence" test because joyriding is a lesser included offense of car theft does
not mean that all lesser included offenses, however defined, will satisfy the same
evidence test.

The court's focus in McFarland was on the evidence presented rather than on the
proof required to prove each statutorily defined offense. As the court pointed out,
under the facts of this case, the assault and battery was the element of violence which
had to be proved in order to convict on attempted armed robbery. However, under the
"same evidence" test, the only appropriate inquiry is whether each provision requires

proof of an additional fact which the other does not. In this case, because each charge

requires proof of a fact which the other does not, they cannot be the same offense,
regardless of how much overlap in evidence exists. If there is sufficient evidence to
establish all of the elements under an Elmore analysis, the defendant may be con-
victed of and punished for both.

"«284 U.S. at 304 (1932).
"«384 N.E.2d at 1113.

""/d. at 1111.

'^'Id. at 1113.

"^See note 8 supra and accompanying text.



1980] DOUBLE JEOPARDY 887

that when it found that, although discrete statutory offenses could
be proved, the legislature intended only one punishment because the

two offenses "address the same harm stemming from one act."^^^
The major difficulty with the court's approach in McFarland is

not that it reached an unjust result. In fact, this approach gives

meaning and vitality to the double jeopardy clause, qualities which

are notably lacking in the "same evidence" approach. However, even

though this approach may capture the spirit of double jeopardy pro-
tection and the intent of the drafters of the fifth amendment, it is
not the approach taken by the Indiana Supreme Court in Elmore or
by the United States Supreme Court in Blockburger. The court in
McFarland, while purporting to apply a "same evidence" test has, in
reality, applied a hybrid "same act/same transaction" test, emphasiz-
ing the fact that the offenses "address the same harm stemming
from one act."^^* Thus, the court focused on the defendant's

behavior, not on the evidence required to prove the offenses. To
espouse one test, and apply a different test can only lead to confu-

sion and uncertainty in an already confused and uncertain area of

law.

The court of appeal's approach in Pillars v. State^^^ indicated
that the confusion had, in fact, taken hold. The court in Pillars
following the McFarland lead, found that the state was barred from
prosecuting the defendant for threatening to use a deadly or

dangerous weapon and for aiming a weapon, because it should have,
discharged the defendant on assault with intent to kill. The court
found that ''technically, Counts II and III [threatening and aiming]

were not lesser included offenses under Count I, the assault charge
. . . [h]owever. Count II and III accused Pillars of committing the

same criminal acts which the State alleged in support of the greater
offense of assault with intent to kill."^^^ Obviously, the court focused

only on the acts of the defendant, not on the statutory definitions of

the various offense categories his acts violated.

The McFarland method of avoiding the potentially harsh results
of the Elmore "same evidence" test is not the only one Indiana
courts have devised. The court in Williams v. State, ^'^'^ another post-
Elmore case, demonstrated an unusual approach to the double
jeopardy problem. In Williams, the defendant was convicted of armed
rape and statutory rape based on the same conduct. The rape
statute under which the defendant was charged defines several

'^^384 N.E.2d at 1113.

^2^390 N.E.2d 679 (Ind. Ct. App. 1979).

'^Hd. at 684.

^=^^383 N.E.2d 416 (Ind. Ct. App. 1978).



888 INDIANA LAW REVIEW [Vol. 13:863

distinct crimes/^® The court recognized that the crimes defined by

the statute do not contain identical elements and are therefore

separate and distinct offenses. ^^® However, in spite of the fact that

the defendant had been charged with forcible rape and statutory

rape, the court, relying on an aggravation theory, found that what

the defendant had actually committed was armed statutory rape.
Noting that if an identical crime is charged in two separate counts,

'*the only difference being that in one . . . the defendant ... is charged

with being armed with a deadly weapon," the defendant cannot be
sentenced for both.^^° Thus, the court vacated the sentence for

statutory rape because it found that statutory rape is a lesser in-

cluded offense of armed statutory rape. In essence, the court, on ap-
peal, modified the charges against the defendant in order to avoid

punishing him twice for the same act.
Although in each of the above cases the court paid lip service to

the Elmore rule, none applied it accurately. If these cases are any
indication, it appears that the courts may have an instinctive
repugnance to punishing more than once for the same conduct,
regardless of the statutory definitions of the offenses. It may be
that the scope of double jeopardy protection is so limited by the

*'same evidence" approach, that some courts are unwilling to apply
it.

Cases in which Elmore has been properly applied exemplify the
potentially harsh results which can occur. One such case is Love v.
State^^^ in which the defendant was convicted of voluntary
manslaughter and aiming a firearm. Relying on Elmore, the court

found that the defendant was properly sentenced on both charges
because aiming a weapon is not a lesser included offense of
manslaughter,^^^ even though the manslaughter occurred as a result

of aiming the weapon, and the two offenses in this situation did not
pose distinct dangers.

The situation in Jones v. State^^^ illustrates the potential for
abuse in allowing the prosecutor unfettered discretion in charging

offenses based on the same conduct. In Jones, the defendant was
charged and convicted of robbery and commission of a crime of

violence while armed with a firearm. Applying Elmore, the court

'^*One is "carnal knowledge of a woman forcibly against her will" and another is
"carnal knowledge ... of a female child under the age of sixteen (16) years." Ind. Code
§ 35-13-4-3 (1976).

'^he court found that, "[t]he proof necessary to establish one of these rape of-
fenses would be at variance with the evidence and proof that would be required in
order to establish another of the offenses." 383 N.E.2d at 418.

'"Id.

•^'383 N.E.2d 382 (Ind. Ct. App. 1978).
'''Id. at 386.

•'"'387 N.E.2d 93 (Ind. Ct. App. 1979).



1980] DOUBLE JEOPARDY 889

correctly found that the defendant could be sentenced on each. Had
the prosecutor charged the defendant with robbery and armed rob-

bery, however, the "same evidence" test would have precluded

punishment for both because robbery is a lesser included offense of

armed robbery. Because the prosecutor in his discretion chose to

charge the former, the defendant was exposed to the possibility of a

longer sentence.
^^^

In Inman v. State^^^ the defendant was convicted of criminal con-
finement and resisting a law officer based on the same conduct.
Under the facts, the two charges were virtually the same offense,
but because each statutorily defined offense required proof of dif-

ferent facts, the court, applying Elmore, found that the defendant

was properly convicted of both.
Although it has in most cases strictly applied Elmore, the

Indiana Supreme Court has, on occasion, indicated that examination
of the facts might be an appropriate area of inquiry. For instance, in

Dragon v. State^^^ the defendant was convicted of rape and kidnap-
ping. The court, applying Elmore, found that the offenses were not
the same. However, it explained that "the record in the case at bar

demonstrates that the kidnapping was in fact a separate offense."^^^
It then related the evidence which supported each crime as a

separate act. Theoretically, under Elmore, the determination

whether two offenses are "the same" can be made by examining the
statutory definitions of the offenses without evaluating any of the

actual evidence.

iv. nonconstitutional double jeopardy protection in
Indiana

The new Indiana Penal Code contains good news and bad news
for the criminal defendant who may be exposed to multiple trials
and punishments for the same act or course of conduct.

A. Good News

Because the Indiana Penal Code is carefully drafted and unified,

the overzealous prosecutor has fewer duplicative or overlapping

''*The court pointed out that a charge of commission of a crime of violence while

armed with a firearm is an aggravation of the underlying felony and therefore, though

an enhanced penalty is permissible, a separate conviction is not. Id. at 96. However,

the maximum sentence for armed robbery would have been 30 years, Ind. Code §
35-12-1-1 (1976) (repealed 1977), whereas the maximum sentence for robbery and com-
mission of a crime of violence while armed with a firearm would have been 35 years.

Ind. Code §§ 35-13-4-6, -23-4.1-2, -18(b) (1976) (repealed 1977).
^»^393 N.E.2d 767 (Ind. 1979).
^'•383 N.E.2d 1046 (Ind. 1979), cert, denied, 442 U.S. 912 (1979).

'^Ud. at 1048 (emphasis added).



890 INDIANA LAW REVIEW [Vol. 13:863

statutes to choose from in charging a criminal defendant. Although

it is likely that what overlap exists was actually intended by the

legislature, the problem of overlap will continue because a certain

amount of piecemeal amendment and unintentional duplication is in-
evitable.

A potentially major statutory protection against multiple
punishment exists in the approach to lesser included offenses. ^^® A
sentencing provision in the Code provides that "[i]f a defendant is

charged with both an offense and an included offense in separate

counts, upon a verdict or finding of guilty judgment and sentence

may be entered against the defendant only on one (1) of the
counts."^^^ This provision taken alone appears to parallel the con-

stitutional requirement that a lesser included offense should be con-

sidered for double jeopardy purposes "the same" as the offense in

which it is included.

However, the statutory definition of lesser included offense

raises questions as to whether the drafters intended to enlarge the

scope of lesser included offenses. The Code defines included offense

as an offense that:

(1) is established by proof of the same material elements or
less than all the material elements required to establish the

commission of the offense charged; (2) consists of an attempt

to commit the offense charged or an offense otherwise in-
cluded therein; or (3) differs from the offense charged only in

the respect that a less serious harm or risk of harm to the
same person, property, or public interest, or a lesser kind of
culpability, is required to establish its commission.'140

The first definition states the traditional identity of elements con-
cept of lesser included offenses. The second definition includes at-
tempts as lesser included offenses. What the drafters meant to
cover in the third definition is not clear, but the use of the disjunc-

tive '*or" indicates that something in addition to elementally iden-

tical offenses and attempts is now included in the definition of lesser
included offenses. Thus, in some circumstances, an offense might be
a lesser included offense even if it does not have an identity of

elements.

The lack of legislative history and court interpretation of the

''«Ind. Code §§ 35-4.1.-4-6, -41-1-2 (Supp. 1979).
'''Id. § 35-4.1-4-6.

"°/d. § 35-41-1-2. This provision is almost identical to the lesser included offense

provision of the Model Penal Code. Model Penal Code § 1.07(4) (1962). Although no
Indiana court has yet applied the statutory definition of lesser included offense in a

double jeopardy setting, the drafters of the Model Penal Code contemplated such a

use. See Model Penal Code § 1.07(l)(a) (1962).



1980] DOUBLE JEOPARDY 891

provision make any guess at legislative intent largely conjectural.
However, it may be that the drafters intended to include in the
defintion of lesser included offenses those offenses such as assault

and battery in McFarland, ^^^ threatening to use a deadly or
dangerous weapon and aiming a weapon in Pillars,^*^ aiming a
firearm in Love,^*^ and resisting a law officer in Inman.^** Though
none of these was a traditional lesser included offense, each was

part of the conduct which achieved the greater offense. Each was, in

essence, a lesser included "act." If this is the kind of offense the

legislature contemplated in the third definition, the protection

against multiple punishment in Indiana goes far beyond the federal

constitutional standard established by Blockburger. However, this

would protect the defendant only against multiple punishment, not

against multiple trials.

B. Bad News

The 1974 proposed final draft of the Indiana Penal Code included
a section providing for mandatory joinder. ^^^ Had this provision been
adopted, the prosecutor, at a single trial, would have been required

to charge all offenses arising out of one transaction unless the

defendant would not have been unduly prejudiced. If the prosecutor

had inadvertently failed to assert a possible charge he could not

have initiated another trial to press that charge. ^^® However, the
final version of the Code adopted in 1976 made joinder permissive
rather than mandatory. ^^^ Although it must surely be in the state's
as well as the defendant's best interest to consolidate all offenses

'^'See text accompanying notes 113-23 supra.

^*^See text accompanying notes 125-26 supra.

"^See text accompanying notes 131-32 supra.

^**See text accompanying note 135 supra.

"Trosecution for multiple related crimes. — When the same conduct or a
series of acts connected together in or constituting parts of a single transac-

tion of a defendant may establish the commission of more than one crime, the
defendant may be prosecuted for each such crime. Provided, however, that a
defendant shall not be subject to separate trials for such multiple related

crimes based on the same conduct or a series of such acts, if such crimes are

within the jurisdiction of the same court and known to the proper pro-
secuting officer, unless, the court may, in the interest of justice, order that

one or more of such crimes shall be tried separately.

Indiana Criminal Law Study Commission. Indiana Penal Code: Proposed Final
Draft 64 (1974).

'^The Marion County Prosecutor has indicated that he would not favor mandatory

joinder because errors and omissions in charging can occur in a large office. If a

serious charge against a criminal defendant were not pressed at one trial, the pro-

secutor would "prefer to keep his option open" to recharge at a later time. Interview

with Steven Goldsmith, Marion County Prosecutor, in Indianapolis (Jan. 28, 1980).



892 INDIANA LAW REVIEW [Vol. 13:863

arising out of one transaction, repeated trials for closely related of-

fenses arising out of the same transaction are still a possibility in In-

diana.

One of the most significant changes in the new criminal code is
the provision which allows for consecutive sentencing at the discre-

tion of the trial judge/^^ This provision, coupled with the demise of

the merger doctrine in Elmore, exposes the criminal defendant to

more punishment than has previously been possible in Indiana. ^^^

Although such a result may shock the conscience, it does not violate
double jeopardy.

V. Conclusion

The adoption of the "same evidence" test has markedly limited
double jeopardy protection. Furthermore, the United States

Supreme Court's unwillingness to modify the scope and content of
the double jeopardy clause to keep pace with changing attitudes

toward criminal justice indicates that redefinition of "same offense"

at this point is remote. To increase double jeopardy protection, the
individual states must do so by statute or through liberal interpre-
tation of double jeopardy in state constitutions.

In Indiana, the adoption of the federal double jeopardy stand-

ards and "same evidence" test in Elmore, virtually precludes a
liberal interpretation of the state constitutional provision. However,
by statute, Indiana may have provided significant protection against
multiple punishment.

"'IND. Code § 35-3.1-1-9 (Supp. 1979) provides in part:

(a) Two (2) or more offenses can be joined in the same indictment or in-

formation, with each offense stated in a separate count, when the offenses:

(1) are of the same or similar character, even if not part of a single

scheme or plan; or

(2) are based on the same conduct or on a series of acts connected

together or constituting parts of a single scheme or plan.

'''Id. § 35-50-1-2.

"®If the prosecutor exercises his discretion to charge a defendant with all offenses

his act or course of conduct violates, and if, after conviction the trial judge exercises

his discretion to sentence consecutively, the criminal defendant could find himself serv-

ing several consecutive sentences for a single criminal act. It is the policy of the

Marion County Prosecutor to press all possible charges arising out of one course of

criminal conduct even if the same act has violated more than one statute. Interview

with Steven Goldsmith, Marion County Prosecutor, in Indianapolis (Jan. 28, 1980).